N.G. Vigneshwara Bhat vs Karithyayini and Others

V. Chitambaresh, J.—The suit for recovery of possession on title with mesne profits was initially dismissed by the trial court. But then the decree was reversed in appeal and affirmed in first appeal against appeal. The plaintiff/decree holder has been found entitled to mesne profits under the decree which has become final. The suit was instituted as informa pauperis on 24-10-1980. The property was delivered over to the legal heirs of the decree holder in execution on 17-11-2007. It is beyond cavil that the legal heirs are entitled to mesne profits from 24-10-1980 to 17- 11-2011. An Advocate Commissioner had been deputed in the suit who filed Ext. A1 report dated 28-5-1988. The decree scheduled property includes 92 cents of arecanut garden which alone is income yielding. The report of the Commissioner indicates the probable income as well as actual income from the decree scheduled property. The execution court has fixed the mesne profits on the basis of the probable income as opined by the Advocate Commissioner.

It is true that the quantification of mesne profits has been relegated to the execution stage under the decree. A reference to the definition of ''mesne profits'' u/s 2(12) of the CPC is apposite.

Mesne profits of property means those profits which the person in wrongful possession of such property actually receive or might with ordinary diligence have received therefrom, together with interest from such profits, but shall not include profits due to improvements made by the person in wrongful possession.

It is evident therefore that only the actual profits received from the property together with interest thereon can be termed as mesne profits. A rate of 6% per annum as interest would be just and reasonable under the circumstances. There is no finding by the court below that the defendant has indulged in wanton acts of damage. The profits which would be generated from the property had the defendant been diligent is another important aspect.

The number of areca nut trees as on the date of suit agreement would be a very relevant factor. The income generated from those trees with ordinary diligence alone can be reckoned for mesne profits. Trees subsequently grown in the property are only improvements made by the defendants in wrongful possession. The income from those trees grown/ planted subsequent to the date of agreement cannot be reckoned at all. The income can be assessed only after defraying the expenses for agriculture.

The legal heirs of the decree holder point out that 173 trees are dead as per the report of the Commissioner. But the defendants assert that those trees were not in existence as on the date of suit agreement. This is a matter for deeper probe by the execution court in the assessment of mesne profits. The court below in the instant case has merely adopted the probable income opined by the Advocate Commissioner. There is no in-depth consideration of the mesne profits as defined in Section 2(12) of the Code of Civil Proceudure.

I have no option but to set aside the impugned order in E.P No. 32/2008 in O.S No. 46/1987 on the file of the Court of the Subordinate Judge of Kasaragod. Either parties are at liberty to file statements indicating the quantification of mesne profits. Both parties are also at liberty to adduce other evidence in this regard. The court below shall pass a detailed order after hearing the parties at length. The legal heirs of the decree holder is permitted to withdraw a sum of Rs. 2,00,000/- (Rupees two lakhs only) out of the sum Rs. 3,00,000/- (Rupees three lakhs only) deposited by the petitioner/judgment debtor pursuant to the interim order in the Civil Revision Petition. I wish to add that the decree holder is only one of the co-owners of the property. It goes without saying that he is accountable to the other co-owners also. The court below shall take the proceedings to a logical end within a period of four months from the date of receipt of a copy of this judgment.

The Original Petition (Civil) is disposed of as above.